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Krieg v S (CA285/2017) [2018] ZAECGHC 72 (22 August 2018)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case no: CA285/2017

Date heard: 20 August 2018

Date delivered: 22 August 2018

In the matter between

MARTIN KRIEG                                                                                                   Appellant

Vs

THE STATE                                                                                                      Respondent

 

JUDGMENT

 

PICKERING J:

[1] The appellant was convicted by van Papendorp AJ in the High Court, Eastern Cape Local Division, Port Elizabeth, of kidnapping (count 1) and rape (count 2).  He was sentenced on count 1 to undergo five years imprisonment and on count 2 to life imprisonment.  Leave to appeal against the sentence of life imprisonment imposed upon him on count 2 was refused by van Papendorp AJ but appellant was granted the requisite leave to appeal against that sentence to the Full Bench of this Division on petition by him to the Supreme Court of Appeal (per Cachalia JA and Fourie AJA).

[2] The evidence of the complainant was to the effect that on the evening of 22 November 2015 she was in the company of friends at a certain house when appellant, whom she had not seen before, arrived and requested to be allowed in because, he alleged, people were chasing him and he was afraid.  Appellant was allowed in and eventually, at his request, was permitted to spend the night.  He was instructed to sleep on a single bed in the room whilst complainant and her two friends slept together on the double bed.  Shortly after complainant went to sleep, lying on the edge of the double bed, she was awoken by appellant who requested her to have sexual intercourse with him.  She refused but appellant then dragged her off the bed onto the floor and assaulted her with open hands on the face.  Although she screamed her one female friend was unable to assist while the other male friend was so intoxicated that he did not wake up. 

[3] Appellant then dragged complainant out of the house and took her to a nearby shack when he again assaulted her.  Despite her screams no one came to her assistance.  Appellant pushed her into the shack and demanded that she undress herself.  She refused and appellant then assaulted her and pulled down her jeans and panties himself and proceeded to rape her.  After this he left the shack, locking the door from the outside.  Complainant was eventually rescued from the shack and appellant was arrested. 

[4] Complainant’s mother testified that when she saw complainant at appellant’s shack after she had been rescued complainant was in a very bad state.  Her face was swollen, she had scratch marks on her neck, a lump on her head, and she was limping.  Her clothes were torn, dirty and full of mud.  She was emotional and crying. 

[5] At 14h30 on 22 November complainant was examined by a forensic nurse at Tutuzela Care Centre.  His findings, as recorded on the J88 form, Exhibit 1, were to the effect that complainant’s urethral orifice was red and tender; there was a 1cm cut on the left labia minora; three different cuts of approximately 1cm x 1cm deep in the fossa navicularis; she had bruising on both arms; both shoulder blades; and at the back of her neck.  There was severe tenderness in both her groin areas.  According to the forensic nurse complainant’s face, as well as the front of her neck, was swollen and she had difficulty in swallowing. 

[6] Because the rape of complainant involved the infliction of grievous bodily harm the minimum sentence applicable in terms of Act 107 of 1997 was life imprisonment.  The learned Judge found that there were no substantial and compelling circumstances such as would justify a lesser sentence than the prescribed minimum.  She accordingly sentenced the appellant to life imprisonment.

[7] On appeal Mr. van der Spuy for appellant submitted that the learned Judge had erred in her finding that no substantial and compelling circumstances were present.  He submitted that the learned Judge had overemphasized the interests of the community and the seriousness of the offence at the expense of factors personal to appellant.  In this regard he stressed in particular that appellant was at the time of commission of the offence relatively youthful, being 22 years of age.  He was a first offender who had grown up without any father figure in his life, having being raised by his grandmother.  He had left school after grade 8 because of financial constraints.  As to the circumstances of the offences Mr. van der Spuy stressed that appellant appeared to have been under the influence of alcohol at the time and that it did not appear that he had premeditated the commission of the offence.  He submitted that there was no reason to conclude that appellant was incapable of rehabilitation. 

[8] It must always be borne in mind that a court of appeal has no general power to set aside the sentence of the trial court.  The imposition of sentence is within the discretion of the trial court and the appeal court may only interfere if that discretion has not been exercised in a proper judicial manner.  This might arise, for example, where the sentence is so grossly disproportionate or unreasonably excessive that it gives rise to the inference that the trial court could not have applied its mind to the matter properly.  (S v Giannoulis 1975 (4) SA 867 (A); S v Kgosimore 1999 (2) SACR 238 (SCA) at paragraph [10].)  The obligation to impose a sentence prescribed by an Act of Parliament does not divest the imposition of sentence of its discretionary nature.  The discretion is circumscribed but not taken away by the legislation.  The cases of, for instance, S v Malgas 2001 (1) SACR 469 (SCA); Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) and S v Vilakazi 2009 (1) SACR 552 (SCA) explain this at some length.

[9] I am entirely unpersuaded that the learned Judge misdirected herself in any respect in her approach to sentence.  All the factors stressed by Mr. van der Spuy were carefully considered by her in her extensive judgment on sentence in the course of which she referred to and applied a number of decisions including that of S v Matyityi 2011 (1) SACR 40 (SCA) in which the heinous nature of the crime of rape as well as the fact that the act of rape is an invasive and dehumanizing violation of a rape victim’s body was emphasized.  The learned Judge properly evaluated appellant’s personal circumstances in relation to the aggravating circumstances having due regard to the objects of criminal punishment and the interests of society. 

[10] In my view also the submission made by Mr. van der Spuy to the effect that the appellant did not appear to have premeditated the commission of the offence cannot be sustained.  In my view the opposite is true.  After he had woken complainant up and after she had rejected his advances he then dragged her from the sanctuary of her friend’s home and took her to his shack.  He had ample time on the way to his shack to reflect upon what he was doing and to desist from his course of action.  Despite her resistance and her screams he persisted in that course of action and subjected her to a humiliating and brutal assault.  In my view, given the gravity of the offence any lesser sentence than life imprisonment would be inadequate and disproportionate.

[11] Accordingly the appeal against sentence on count 2 is dismissed.

 

 

___________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

 

 

I agree,

 

 

__________________

F.B.A. DAWOOD

JUDGE OF THE HIGH COURT

 

 

I agree,

 

 

___________________

N.W. GQAMANA

ACTING JUDGE OF THE HIGH COURT

 

Appearing on behalf of Appellant: Adv. Van der Spuy

Instructed by: Legal Aid, South Africa

Appearing on behalf of Respondent: Adv. Thysse

Instructed by Director of Public Prosecutions, Grahamstown